Moyer v. SCANA Corporation

Filing 23

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting the Report; granting in part 7 Motion to Dismiss for Failure to State a Claim; denying 10 Motion for Sanctions; referring the matter to the Magistrate Judge for further pretrial proceedings. Signed by Honorable Cameron McGowan Currie on 9/10/2014. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Edwina Moyer,

)
)
Plaintiff,
)
)
v.
)
)
SCANA Corportation d/b/a SCE&G
)
Wateree Station Generating Plant,
)
)
Defendant.
)
___________________________________ )

C.A. No.: 3:13-cv-3127-CMC-WWD1
OPINION AND ORDER

This matter is before the court on Defendant’s motions (1) to dismiss and strike, ECF No.
7, and (2) for sanctions, ECF No. 10. For the reasons set forth below, the motion to dismiss and
strike is granted, and the motion for sanctions is denied without prejudice.2
PROCEDURAL BACKGROUND
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(g), D.S.C., this
matter was referred to United States Magistrate Judge Wallace Dixon for pre-trial proceedings and
a Report and Recommendation (“Report”). On July 28, 2014, the Magistrate Judge issued a Report
recommending that Defendant’s motion to dismiss be granted to the extent the complaint purported
to assert claims under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), and
42 U.S.C. § 1981 (“Section 1981”). ECF No. 18 at 3-4 (recommending dismissal of such claims
under Fed. R. Civ. P. 12(b)(1) because Plaintiff’s administrative claim referred only to age

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The civil action number has been modified to reflect the change in venue and judicial
assignment. This modified number should be used on future filings.
2

Defendant also moved for a divisional change of venue in ECF No. 7. That aspect of the
motion was resolved by earlier order transferring this matter to the Columbia Division of this court
and is not addressed in this order.

discrimination).3 The Report also recommended that Defendant’s motion for sanctions be denied
without prejudice. Id. at 5 (addressing sanctions motion as follows: “Last of all, it is recommended
that the Defendant’s motion for sanctions be denied with leave to refile at a later date if necessary.”).
In addition, the Report noted that Plaintiff had agreed to withdraw her prayer for punitive damages
and had indicated that she intended to amend the complaint to name the correct entity as employer.
Id. notes 1, 3. Finally, the Report recommended that a request to amend included in Plaintiff’s
response to Defendant’s motion to dismiss be denied to the extent deemed a motion to amend the
complaint. Id. n.4 (noting, inter alia, that the request was not a proper motion to amend because it
failed to attach a proposed amended complaint).
The Magistrate Judge advised the parties of the procedures and requirements for filing
objections to the Report and the serious consequences if they failed to do so. Plaintiff did not file
any objections. Defendant objected only to the Report’s failure to address its arguments for
dismissal of Plaintiff’s second cause of action for breach of contract. ECF No. 19 (incorporating and
attaching its earlier memoranda, ECF Nos. 7, 13). Plaintiff did not respond to Defendant’s
objections.
STANDARD
With respect to dispositive motions, the Magistrate Judge makes only a recommendation to
this court. The recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is

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The complaint asserts two claims. The first is captioned as a claim for violation of the Age
Discrimination in Employment Act but includes multiple references to Title VII. The second
paragraph of the complaint also refers to Section 1981. The second claim is captioned as a breach
of contract claim and relies on language contained in an employee handbook.
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charged with making a de novo determination of any portion of the Magistrate Judge’s Report and
Recommendation to which a specific objection is made. The court may accept, reject, or modify,
in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In the absence of an objection, the
court reviews the Report and Recommendation only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation”) (internal
citation omitted).
DISCUSSION
Title VII, Section 1981, and Punitive Damages Demand. There is no objection to the
recommendation that any claim arising under Title VII or Section 1981 be dismissed for lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The court has, therefore, reviewed
this recommendation for clear error. Finding none, the court dismisses any such claim arguably
advanced by the complaint.
As to the demand for punitive damages, the Report states that “Plaintiff has agreed to
withdraw her prayer for punitive damages.” ECF No. 18 at 1. Plaintiff’s actual statement was that
she “will concede to striking her request for punitive damages.” ECF No. 11 at 8. The court,
therefore, strikes Plaintiff’s prayer for punitive damages.
Sanctions. As there is no objection to the recommendation that Defendant’s motion for
sanctions be denied without prejudice, the court has reviewed that recommendation for clear error.

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Finding none, the court adopts this recommendation and denies the motion for sanctions without
prejudice.
Amendment of Pleadings. The court also agrees that Plaintiff has, to this point, failed to
assert a proper motion to amend. The court, therefore, denies leave to amend without prejudice to
consideration of a proper motion to amend at a later time, for instance to cure the apparent error in
naming the parent corporation rather than Plaintiff’s actual employer.4
Contract Claim. Defendant is correct that the Report fails to address its motion to dismiss
Plaintiff’s second cause of action. This breach of contract claim is founded on allegations that
Defendant created a contract through mandatory language in an employee handbook. Defendant asks
the court either to recommit the matter to the Magistrate Judge for supplemental recommendations
or to address this aspect of the motion to dismiss without a further Report. The court takes the latter
course in the interest of advancing this matter without further delay.
As Defendant notes in its memoranda supporting the motion to dismiss, the complaint fails
to identify any specific mandatory language in the employee handbook that Defendant allegedly
breached. ECF No. 7 at 6-9; ECF No. 13 at 2-3. Plaintiff’s memorandum in opposition to
Defendant’s motion, contains the following statement of fact relevant to her contract claim:
On or about February 9, 1998, the Plaintiff, and the Defendant . . . entered
into a contract whereby the Defendant employed the Plaintiff to begin work at that
time as a full time employee. The Defendant’s handbook uses mandatory language
creating a contractual agreement between the Plaintiff and the Defendant for
employment. At all times the Plaintiff, who was sixty-six (66) years old, was
effective and efficient in her work.

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Plaintiff is reminded that both the local rules of this court and judicial filing preferences
impose specific formatting requirements including that filed documents be double spaced. The
original complaint is not in compliance with these requirements.
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ECF No. 11 at 1. Plaintiff’s subsequent discussion of her breach of contract claim consists primarily
of a summary of South Carolina law regarding the circumstances under which an employee
handbook may provide a basis for asserting a breach of contract claim. Id. at 5-8. Plaintiff’s only
discussion specific to this case is as follows:
The Plaintiff’s complaint states that the Plaintiff entered into an employment
contract whereby the Defendant agreed to employ the Plaintiff on or about February
9, 1998. When the Defendant wrongfully terminated the Plaintiff due to her age and
in retaliation for her complaints of discrimination, the Defendant breached that
contract by discriminating against Plaintiff.
***
The Plaintiff was expected to perform her duties. Even if the employment
agreement does not constitute a written agreement, it did not have to be in writing to
meet the Statute of Frauds requirements.
The Plaintiff signed various documents, which were retained by the
Defendant. Once discovery is initiated, the Plaintiff will have the opportunity to
review those documents and determine whatever [sic] the cause of action can stand
out or not.
Here, whether the handbook and employment documents created a contract
is a jury question. Therefore, the Defendant’s motion to dismiss should be denied by
this Court.
ECF No. 11 at 7-9.
Neither these arguments nor any language in the complaint identify a single specific
mandatory provision of the handbook allegedly breached by any alleged action of Defendant. At
best, Plaintiff’s arguments suggest the possibility that discovery might provide Plaintiff with a basis
for a claim.5 This is hardly sufficient to withstand scrutiny under Rule 12(b)(6) of the Federal Rules

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Plaintiff did not file a response to Defendant’s objection. The court, therefore, draws
Plaintiff’s position from the complaint and Plaintiff’s memorandum in opposition to Defendant’s
motion to dismiss.
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of Civil Procedure. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding court need only accept
as true the complaint’s factual allegations, not its legal conclusions); Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007) (holding plaintiff must allege “enough facts to state a claim to relief that is plausible
on its face.”). The court, therefore, grants Defendant’s motion to dismiss the contract claim for
failure to state a claim. This dismissal is without prejudice to future amendment should Plaintiff
develop a proper factual and legal basis for such a claim.
CONCLUSION
For the reasons set forth above, the court adopts the Report as to all recommendations made
and, therefore, pursuant to Fed. R. Civ. P. 12(b)(1), dismisses any Title VII or Section 1981 claim
which may be asserted, strikes Plaintiff’s prayer for punitive damages, denies Defendant’s motion
for sanctions without prejudice, and denies Plaintiff’s request for leave to amend to the extent that
request may be construed as a motion to amend. In addition, the court grants Defendant’s motion
to dismiss Plaintiff’s contract claim. Dismissal of the contract claim and denial of the motion to
amend are without prejudice.
Because a claim for violation of the Age Discrimination in Employment Act remains, the
court again refers the matter to the Magistrate Judge for further pretrial proceedings. If Plaintiff
intends to file a motion to amend to correct the name of the Defendant or to cure other currently
known deficiencies, she shall do so within twenty-eight (28) days of entry of this order.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
September 10, 2014

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